If Only It Was That Easy

“We don’t need to mediate–we agreed to everything already and just want you to write it up.”

“We don’t have any assets, so we don’t have anything to talk about.”

“We don’t need a separation agreement, we just want to get divorced.”

Undoubtedly, as all mediators do, I’ve heard these statements, or variations on them, more often than I can count. It’s understandable, but it’s not that simple.

Here is why it’s more complicated than you may think and why coming to an initial consultation for mediation can be so helpful, even if you think that you don’t need mediation.

We’ve agreed to everything

It’s hard to agree to everything without knowing what everything is, including the law and the concept of separate and marital property. Your salary is marital property, along with the bank account in your own name funded with your salary, any furnishings that you bought together, and possibly your retirement account.

In terms of children, you may have general ideas about how you will share time with your children and have seen the Child Support Standards Act online. But:

Have you considered holidays, vacations, school recess periods, and how the schedule may change as the children get older?

Have you done budgets to see if the formula for child support is workable for you?

Have you discussed what happens if one of you loses your job or makes more or less money than you do now?

What about insurance if one of you dies?

We don't have any assets

Does that mean you don’t have any marital assets? Or does it mean that you kept assets in your individual names and you are each keeping them?

Did either of you or your employers make any contributions to a retirement account?

How about debt?

You certainly can agree that you will each keep assets and debt held individually, but you need to know what those assets and debts are and how much was accumulated during the marriage. It’s unlikely that nothing at all was accumulated, so you need to have full and complete disclosure. And you need to understand what the law provides in terms of equitable distribution before you decide to waive it.

You may also think that because you both work, there is no need for spousal support. That may or may not be the case, but you wouldn’t really know until you understand the law in New York and do budgets to see if you can each afford to live on your own.

Can’t you just do divorce papers?

Uncontested divorce papers are best for couples who have worked everything out in a Separation Agreement or who don’t have much in the way of assets and don’t have children. If not, it’s more complicated to complete a set of uncontested divorces papers. And you lose the protections and the detail that you can achieve in a Separation Agreement.

So, while it will make the process much easier if you’ve agreed upon everything or have limited assets, that doesn’t necessarily obviate the need for mediation. Attending a consultation won’t obligate you to go any further, and you can get some valuable information to help you make a good process choice.